Private nusiaance

• DEFINE Private Nuisance


  "unlawful interference with a person's use or enjoyment of land"
• The two types of nuisance:


  1) Loss of amenity

  2) Material damage
• Parties to an action


  C must have an interest in the land. This includes being an owner who has legal interest in property- HUNTER v CANARY WHARF
• Focus of the nuisance


  - the focus of a nuisance is on the reasonableness of the interference caused to C, and not whether D took reasonable care.

  - D is at fault because there is some unreasonable interference
• Lord Goff's quote from Cambridge Water


  "the fact that D has taken all reasonable care will not in itself exonerate him"
• Elements of Private Nuisance


  1) an unlawful (unreasonable) use of land

  2) Leading to an indirect interference

  3) With the claimants use or enjoyment of land
• 1) unlawful (unreasonable) use of land:


  - Locality factor: LEEMAN v MONTAGUE- loss of amenity, 750 cockerels in residential area

  - The duration of the nuisance- the more long lasting, the more likely it will be unreasonable- DE KEYSER'S ROYAL HOTEL- construction during the night at the hotel = unreasonable

  - The seriousness of the interference- inconvenience v physical damage

  - Inconvenience must be extreme or excessive. For a claim in nuisance, it must be extreme or excessive. - LEEMAN V MONTAGUE. D's action must affect an ordinary person or ordinary property. Sensitivity is ignored- HEATH v MAYOR OF BRIGHTON

  - Motive and malice of D: Where the activity by malice, the D cannot argue that C is unusually sensitive. CHRISTIE v DAVEY: If activity is motivated by malice then the courts are more likely to hold that such activity is unlawful. Considered as revenge.

  -Social benefit: if it's considered that D is providing a benefit to the community, the courts may establish the actions are reasonable. MILLER v JACKSON: the courts weighed up the use of the ground and the benefit of the sport to the community against C's use of their garden
• 2) leading to an indirect interference:


  fumes, noises, vibrations, fire, pollution...
• 3) With C's use or enjoyment of land

  -LEEMAN v MONTAGUE- cockerels in residential area = noisy and disturbing - HUNTER V CANARY WHARF: suggests that an interference with recreational activities might not be actionable
• defences available for PN


  o Statutory authority: Parliament passed legislation- HAMMERSMITH AND CITY RAILWAY v BRAND

  o Planning permission: only a defence if it changes the character of the neighbourhood- GILLINGHAM (no nuisance), WHEELER (nuisance)

  o Prescription- tolerated for 20 years
• Remedies available for PN and RvF


  o Damages- loss of enjoyment. WAGON MOUND. Claim for mitigating losses

  o Injunctions- discretionary remedy awarded, stopping someone from doing something. KENNAWAY v THOMPSON (limiting injunction), MILLER v JACKSON

  o Abatement- self help, LEMMON v WEBB
• Lord Goff said the case of Ryland's v Fletcher is:


  "essentially an extension of the law of nuisance to isolated escapes from land."
• originally a strict liability offence until ...


  - the case of CAMBRIDGE WATERS. D was not liable as they couldn't foresee the contamination in the river from a mile away.

  - Any damage caused by an escape had to be reasonably foreseeable, not the escape itself.
• Parties to an action


  Only those who have proprietary rights can claim- READ v LYONS
• The claimant must establish the following things to successfully claim:


  o A) bringing on to land and accumulating

  o B) Of a thing likely to cause mischief if it escapes

  o C) Which amounts to a non-natural use of land

  o D) And does escape and cause damage
• o A) bringing on to land and accumulating- there is no liability for something naturally on the land which escapes.


  § GILES v WALKER- no liability for weeds spreading onto neighbour's land

  § ELLISON- no liability for rainwater accumulated naturally on land caused flooding on neighbouring land

  § LEAKY v NATIONAL TRUST- liability if D has adopted the nuisance. D didn't prevent damage which was reasonably foreseen.

  § R v F- an unusual and extraordinary amount of water brought

  § CAMBRIDGE WATER- substantial amount of special chemicals
• o B) Of a thing likely to cause mischief if it escapes- it isn't the escape itself but that a mischief is likely if the thing that is brought onto the land escapes

  § CAMBRIDGE WATER, any damage caused by an escape had to be reasonably foreseeable otherwise it will be too remote and unrecoverable. Not foreseeable, so no liability.
• o C) Which amounts to a non-natural use of land- extraordinary and unusual not domestic or normal


  The rule applies where D has brought something onto their property that was not naturally there, or non-natural use due to quantity or volume, as in R v F

  § CAMBRIDGE WATER- non-natural use so liable

  § TRANSCO- natural use so not liable
• o D) And does escape and cause damage- it is not the escape itself that must be likely only the mischief is likely if the thing brought onto land escapes

  § R v F- Liable as water escaped

  § READ & LYONS- not liable shell didn't escape

  § STANNARD & GORE- Not liable as tyres didn't escape
• Defences for R v F


  o 1) Act of third parties (stranger) RICHARD v LOTHIAN- D not liable as it was a third party who turned tap on and let water escape

  o 2) Act of God

  o 3) Statutory Authority- D is not liable if they are obligated by statute to do something- GREEN v CHELSEA WATERWORKS

  o 4) Fault of the Claimant- If C is partly responsible

  o 5) Consent of the C- Where C expresses or implies consent to the accumulation of the particular thing on D's land.